Judge: Deborah C. Servino, Case: 30-2021-01209460, Date: 2022-07-29 Tentative Ruling
Plaintiff Formosa Flexible Packaging America, Inc. dba Foilflex Products’ motion to compel further responses from Defendant Seaside Trading Company, Inc. (“Seaside”) to form interrogatories, set one, numbers 17.1 (as it relates to request for admission numbers 1-5, 9, and 10), 50.1-50.3, and 50.5, is granted in part and denied in part. The motion is granted as to form interrogatories, set one, number 17.1 (as it relates to request for admission numbers 1-5, 9 and 10). The motion is denied as to form interrogatories, set one, numbers 50.1-50.3 and 50.5. Plaintiff’s motion to compel further responses to request for admissions, set one, numbers 1-5, 9, 10, 22, and 26-28, is granted.
Duplicate Motions
As a preliminary matter, Plaintiff filed two nearly identical motions to compel further responses to requests for admission, three days apart. The only apparent differences are that the later filed motion includes a proof of service and the motions have different reservation numbers noted in the captions. (See ROA No. 71 and 77.)
New Evidence Submitted with Reply
“The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ’ and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (Id. at p. 1538.)
Here, some of Plaintiff’s reply evidence directly responds to Seaside’s opposition and Seaside’s contention that Plaintiff never served the May 20, 2022 meet and confer letter. The court exercises its discretion to consider the new evidence. Defendant may address the reply evidence at the hearing on the motions.
Meet and Confer
Seaside contends Plaintiff did not meet and confer prior to filing these motions. Seaside provided evidence, mostly through declarations, that it did not receive the May 20, 2022 letter. (Ousley Decls., ¶¶ 20-26 and 29, Exh. 8; Mangiona Decls., ¶¶ 5-7.)
In response, Plaintiff provided evidence that it served by mail and email, a meet and confer letter dated May 20, 2022, received no response, and did not receive any further supplemental responses from Seaside by the time the motions were filed. (Code Civ. Proc., §§ 2030.300, subd. (b) and 2033.290, subd. (b); Mazarei Decl., at ¶ 20, Exh. H; Samuel Decl., at ¶¶ 14-15, Exhs. EE and FF; Akbari Decl., at ¶¶ 6-8.) By the time the replies were filed, no further supplemental responses were served. (Mazarei Reply Decl., at ¶ 29.)
The Court finds Plaintiff sufficiently met and conferred in good faith regarding form interrogatory number 17.1 (as it relates to request for admission numbers 1-5, 9, and 10) and request for admission numbers 1-5, 9, 10, 22, and 26-28. Plaintiff’s meet and confer letter did not discuss form interrogatory numbers 50.1-50.3 and 50.5. (Mazarei Decl., at ¶ 20, Exh. H.) Accordingly, Plaintiff did not sufficiently meet and confer regarding those four form interrogatories. The motion is denied as to 50.1-50.3 and 50.5.
Seaside contends that because there was no agreement between the parties to use electronic service, it could not be served via electronic service. (See Ousley Decls., ¶ 28, Exh. 11.) This contention is incorrect. The parties who are represented by counsel are not required to affirmatively consent to electronic service. Electronic service is proper, unless the Court excuses electronic service. (Cal. Rules of Court, rule 2.251(c); Local Rule 352.) The court has not excused electronic service for Defendants.
Merits
Seaside did not meet its burden to justify its failure to fully answer interrogatory numbers 17.1 and 50.1-50.3, and request for admission numbers 1-5, 9, 10, 22, and 26-28. Accordingly, Plaintiff’s motion to compel further responses to form interrogatory number 17.1 (as it relates to request for admission number 1-5, 9, and 10) is granted. (Code Civ. Proc., § 2030.300, subd. (a).) Plaintiff’s motion to compel further responses to request for admission numbers 1-5, 9, 10, 22, and 26-28 is granted. (Code Civ. Proc., § 2033.290, subd. (a).) Seaside shall serve verified, further supplemental, Code-compliant responses to these discovery requests within 20 days of the notice of rulings.
The court declines to award any sanctions.
Plaintiff shall give notice of rulings.